SUSAN GUMIENY, Applicant
COUNTY CONCRETE CORP, Employer
ZURICH AMERICAN INSURANCE CO, Insurer
c/o GALLAGHER BASSETT SERVICES INC
In June 2004, the applicant filed an application (later amended by letters dated October 4, 2004, October 18, 2004, and February 7, 2005) seeking compensation for an injury from work activity on March 5, 2004. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 7, 2005.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage as of the alleged date of injury of $634.62. At issue was whether the applicant suffered an injury caused by an accident or disease arising out of her employment with the employer while performing services growing out of and incidental to that employment. If a compensable injury is found, ancillary issues include the nature and extent of disability from the injury (with the applicant claiming temporary total disability from May 17 to August 24, 2004, and permanent partial disability on a functional basis at 20 percent compared to permanent total disability), the respondent's liability for medical expenses, and the applicant's entitlement to an interlocutory order on a number issues including possible additional permanent partial disability compensation for loss of earning capacity.
The presiding ALJ issued his decision in the applicant's favor on January 16, 2006. The respondent filed a timely petition for commission review. The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Facts.
a. Pre-employment complaints.
The applicant was born in 1958. As noted below, she began working for the employer in 2003.
The applicant has a history of right arm and neck problems preceding her employment with the employer. A February 20, 1998, note from Thomas Williams, M.D. (exhibit 3), documents treatment by her family doctor, Anthony Norelli, November 1997 on a diagnosis of right lateral epicondylitis. In his February 20, 1998 treatment note, Dr. Williams also noted pain in the triceps and right posterior shoulder, which seemed to be radiating from her neck. The applicant told the doctor she had no previous history of neck problems. An x-ray showed degenerative changes at C5-6. Dr. Williams noted no obvious radicular symptoms, but felt the applicant might have some osteoarthritis aggravating a nerve. He referred her to physical therapy, and stated that if the problems persisted he would refer her to an orthopedist.
Exhibit 3 also contains a physical therapy note dated March 6, 1998, which lists a diagnosis of right medial epicondylitis and osteoarthritic neck, beginning three months earlier with no injury and growing progressively worse. Pain in the entire right arm and neck are documented. The applicant's condition improved, however, and she was discharged with no complaints of pain and no problems with function on March 25, 1998.
The applicant returned to Dr. Norelli on September 27, 1999, complaining of right arm and forearm pain, and occasional hand and wrist numbness. The doctor assessed right carpal tunnel syndrome with a potential for radiculopathy. The doctor ordered EMG/NCV nerve testing.
The nerve testing was done on November 1, 1999. Both the EMG and the NCV were normal, but the interpreting doctor suggested a cervical radiculopathy based on the applicant's complaints, and recommended an MRI. The MRI was done on November 16, 1999; it showed degenerative changes at C5-6, and
posterior disc bulging at this level, but without evidence of herniation and narrowing of the right sided C5-6 neural foramen, secondary to osteophyte formation.
This led to a referral to a neurologist, David C. Hemmy, M.D., who saw the applicant on December 2, 1999. He noted symptoms of intense pain in the right arm in what appeared to be the C5-6 dermatone. He noted the MRI which showed a C5-6 osteophyte which could be the source of her pain. However, he also noted a double crush syndrome suggestive of carpal tunnel syndrome. He noted a differential diagnosis between a C6 radiculopathy and carpal tunnel syndrome.
Dr. Hemmy started the applicant in halter traction, which provided relief of what Dr. Hemmy referred to as "her radicular pain" on December 9, 1998. On December 23, 1998, the doctor told her to stop the halter traction, but if pain recurred, she would need an anterior interbody, decompression and fusion.
In August 2000, the applicant saw Dr. Norelli for a "neck strain superimposed upon a previous cervical pathology," occurring after the applicant slipped and fell in a puddle. The applicant again saw Dr. Norelli on December 2, 2002, when he noted:
She still has pain in her neck. She is doing traction but right upper extremity radicular symptoms persist and she is dropping things on occasion.
However, the doctor noted also that she wished to hold off on treatment if she could avoid it.
b. Employment; alleged work injury
The applicant began working for the employer on April 15, 2003. She was a showroom manager and helped homeowners and contractors pick out brick, stone, paving and landscaping materials sold by the employer.
On Friday, March 5, 2005, the applicant was assigned work helping to set up a new display room. This involved unpacking hundreds of samples from boxes and hanging them on spikes on 2x4s in the employer's showroom. The samples were in panels or wood frames, and depending on product type weighed between 4 and 20 pounds (September 2005 transcript, page 37-38.) A typical panel might be 18x30 inches in dimension (September 2005 transcript, page 16), though they varied in size and some were smaller. (September 2005 transcript, page 23) The spikes from which the applicant hung the sample panels ranged in height from 12-16 inches off the ground to 84 inches off the ground. Hearing transcript, 2005 transcript, page 16).
The applicant worked until 5:00 p.m. that evening. By that time, the applicant and her coworkers were 95 percent done with the unpacking the showroom. The applicant also was beginning to notice her neck and shoulder were starting to bother her, and she thought perhaps she had pulled a muscle. Specifically, she was experiencing a sharp, stabbing pain down her neck into the right shoulder and down her arm.
The applicant self-treated with Ibuprofen, and worked her normal 8:00 to 12:00 shift the next morning. She was uncomfortable at work, but could complete her shift. She took some more Ibuprofen, and rested at home after work.
The applicant did not report an injury on Friday or Saturday, because there was no one to report it to. On Monday, her normal day off, she contacted her doctor and made an appointment for Tuesday. On Tuesday, she reported the injury, and went to see a doctor.
Dr. Norelli saw the applicant on Tuesday, March 9, 2004. The examiner retained by the respondent, Dr. Aschliman, reported that on that date
[the applicant] provided Dr. Norelli with a history of five days of increasing cervical discomfort. [The applicant] noted that she had been working, but sustained no specific workplace events associated with the development of symptoms. Conservative care was suggested by Dr. Norelli. X-rays were taken demonstrating the previously noted cervical spondyloarthropathy.
Physical therapy was suggested and a pain drawing completed at physical therapy on March 26, 2004, documented symptoms of discomfort in essentially the same location as noted in pain drawings years [earlier].
Further work-up was pursued, and there was noted to be an MRI scan of April 1, 2004, right-sided C5-6 foraminal stenosis. There was no acute herniation. Eventually Ms. Gumieny made her way to Dr. Bartl.
Exhibit 5. On April 22, 2004, Dr. Bartl wrote to Dr. Norelli concerning his examination of the applicant on that day. Exhibit B. Dr. Bartl's letter recites:
She is a 45 year-old right handed woman who runs a showroom for brick and cultured stone. On March 5, 2004, the patient was involved in a sample setting up day involving lifting rock and culture stone samples most of the day and unpacking boxes. At the end of the day, the patient began to experience significant soreness in her right arm, neck pain, as well as some numbness in her am. Her symptoms became severe that night and over the weekend the patient remained at extreme rest, treated herself with Ibuprofen, but without any benefit of her symptoms. Her symptoms worsened.... The patient had a mild history of some neck stiffness with an MRI in 1999, but has not recently treated for neck pain in any way without recent neck pain or arm pain prior to this injury at work.
Dr. Bartl's diagnosis was:
Right C6 radiculopathy secondary to C5-6 foraminal stenosis and disk spur complex. Surgery of a C5-6 decompressive anterior cervical diskectomy and fusion.
On May 17, 2004, the applicant underwent a C5-6 anterior discectomy with fusion. According to the report of the respondent's examiner, Dr. Bartl reported some improvement, but also some persisting symptoms. Dr. Bartl then took x-rays on August 10, 2004, and released the applicant to full activity with follow-up as needed.
The applicant testified that she in fact felt fine and returned to work but in November 2004 began experiencing recurrent symptoms. September 2005 transcript, page 32.
Dr. Bartl then tried injections for the recurrent pain. Ultimately, Dr. Bartl performed a second surgery, an anterior C6-7 discectomy and fusion in February 2005. The examiner retained by the respondent noted the applicant still had persistent complaints of pain thereafter, which led to narcotic prescriptions. A psychological evaluation was also suggested.
The applicant was released to return to work in June 2005, but has not been taken back by the employer. September 2005 transcript, page 34. She testified at hearing she has not been provided with formal restrictions, other than Dr. Bartl telling her she probably would not be able to lift 50 pounds or more on a regular basis. September 2005 transcript, page 35. The applicant testified on deposition that she did not have any formal permanent restrictions. October 25, 2005, transcript, page 14.
c. Medical practitioners' reports.
Both parties submit expert medical opinion concerning the cause, nature and extent of the applicant's disability.
In a report dated June 8, 2004, Dr. Bartl diagnoses right C6 radiculopathy secondary to C5-6 foraminal stenosis and disk spur complex. Regarding causation, the doctor affirmatively marked a box indicating that an accidental event caused disability by precipitation, aggravation, and acceleration of a preexisting progressively deteriorating or degenerative condition beyond normal progression. He refers to an attached note for a description of the causative event or exposure, an apparent reference back to his April 22, 2004 letter to Dr. Norelli. That letter, of course, recites that the applicant began experiencing significant right arm soreness, neck pain, and right arm numbness after being involved in a "sample setting up day" which required lifting rock and culture stone samples most of the day and unpacking boxes. The doctor indicated the applicant would remain in a healing period until at least July 1, 2004.
Dr Bartl issued a second practitioner's report on January 25, 2005. In this second report, the doctor listed a March 5, 2004 date of traumatic event, and included the following description of the accidental event or exposure which the doctor felt directly caused the applicant's disability:
March 5, 2004, pt lifting rock & stone samples. Then began to experience neck pain R[ight] arm stiffness, numbness, & tingling.
The doctor diagnosed C6-7 disk protrusion and right foraminal stenosis, caused directly by the work exposure on March 5, 2004. The doctor opined the applicant could return to limited duty in about two months. Dr. Bartl noted, however, that he anticipated doing the further surgery: the C6-7 anterior discectomy and fusion that he in fact performed in February 2005.
On August 25, 2005, Dr. Bartl wrote a letter to the applicant's attorney which outlined his treatment of the applicant and estimated permanent partial disability at 20 percent, ten percent for the C5-6 fusion and ten percent for the C6-7 fusion. Exhibit G. Dr. Bartl did not include any work restrictions in exhibit G.
Dr. Norelli, also prepared a practitioner's report. He listed the March 5, 2004 date of injury, and described the accidental event or work exposure causing injury as
Neck pain & shoulder pain on R[right]
R[ight] arm radicular symptoms
Brought on by full day of lifting partial brick and cultured stone samples, often having to place them overhead.
He opined that event directly caused the applicant's disability, and his diagnosis was
HNP C5-C6 [with] right upper extremity radicular symptoms requiring surgical correction
Dr. Norelli declined to address return to work or permanent partial disability issues, leaving those issues to neurosurgeon Bartl.
The respondent retained Marc Aschliman, M.D., to examine the applicant. His first report, dated May 10, 2004 (exhibit 1), follows an examination on May 6, 2004, which would be shortly after the injury and before the surgeries. He reporting watching a videotape demonstrating an individual lifting stone and brick samples on cardboard sheets and hanging them up. The videotape is not among the hearing exhibits, but Dr. Aschliman's description fairly matches the applicant's hearing testimony concerning her job duties.
Dr. Aschliman had the impression that the applicant had cervical spondylosis with a right-sided cervical radiculopathy. However, he felt that the applicant's job duties were not consistent with activities that would either cause directly, or aggravate beyond normal progression, the applicant's current condition. Instead, he felt the applicant's condition represented a manifestation of underlying physiologic condition secondary to her physical constitution. He felt that while the applicant may have noted discomfort in the workplace, the workplace activities did not cause or affect the development of the symptoms. Rather, he felt the symptoms were entirely the manifestation of an underlying progressive process; that is, a manifestation of the applicant's physiology. He recommended further clarification of the surgical level and the nature of the surgical procedure before considering surgery.
In October 2004, having been provided with additional records following the applicant's first surgery, Dr. Aschliman reiterated his position that the applicant's work did not directly cause her condition or aggravate her cervical condition. See exhibit 2. Dr. Aschliman opined that the pre-employment treatment discussed above, demonstrated persistent progressive symptoms of neck pain that preceded the alleged work injury. He noted particularly Dr. Norelli's treatment note of December 2, 2002. Dr. Aschliman felt there was no legitimate basis for implicating the work duties in the condition.
Dr. Aschliman did feel the applicant had reached a healing plateau by August 11, 2004, when she was released by Dr. Bartl, and that she had permanent partial disability at 10 percent to the body as a whole, though he opined this was non-industrial. Dr. Aschliman felt the applicant should avoid high impact activities, repetitive rotation, flexion and extension of her cervical spine, and the use of vibratory tools. Again, however, he emphasized these related to the underlying degenerative process and not any industrial activity.
Dr. Aschliman wrote another report on August 30, 2005 (exhibit 5), following the second cervical surgery done by Dr. Bartl. Dr. Aschliman again opined that the applicant's complaints were just a manifestation of symptoms due to her underlying progressive degenerative process without contribution from her job duties. In making that assessment, the doctor again noted her
long history of cervical and upper extremity radicular complaints predated the industrial claim in question. She manifested symptoms of cervical and upper extremity discomfort without specific industrial injury. The job duties to which [the applicant] has attributed her condition have been reviewed on videotape and simply are not consistent with activities that would cause an aggravation beyond normal progression either structurally or symptomatically...
2. Discussion
The ALJ found that the applicant sustained a compensable injury from her activities of March 4, 2004, while working with the employer's samples in the employer's showroom. He awarded permanent partial disability at 20 percent, and issued an interlocutory order regarding the applicant's permanent partial disability on a vocational basis for loss of earning capacity.
The respondent appeals, arguing the applicant has failed to prove her work exposure was a material contributory causative factor in the onset or progression of her disabling condition, that the ALJ failed to properly apply the law as it applies to pre-existing conditions and occupational disease, that the ALJ should not have issued an interlocutory order regarding loss of earning capacity, and that the ALJ should not have ordered reimbursement of certain medical expenses paid through a non-industrial insurer.
a. Causation
Regarding causation, the respondent first contends the applicant has failed to prove that her disability is compensable. The respondent asserts that the applicant has shown neither that her work activity on March 5, 2004 aggravated, precipitated, and accelerated a pre-existing degenerative condition beyond normal progression nor that her work activity on that date was an appreciable period of workplace exposure that was at least a material contributory causative factor in the onset or progression of her condition. Rather, the respondent contends the applicant experienced a noncompensable symptomization or manifestation of a definitely preexisting condition of a progressively deteriorating nature at work without breakage or physical change. See Lewellyn v. ILHR Department, 38 Wis. 2d 43, 58-59 (1968).
Essentially, the respondent contends that Dr. Aschliman's opinion regarding causation is more credible than Dr. Bartl's or Dr. Norelli's. However, the commission cannot agree. While the work exposure (a single day) was brief, and the applicant had had symptoms of cervical radiculopathy in the past, her condition became significantly worse after the day of hanging up samples on March 5, 2004. She had not treated for cervical radiculopathy for over a year before the work exposure,(1) but after the exposure, she underwent more intensive treatment leading ultimately to surgery. The ALJ who saw her testify credited her description of her condition as of March 5, 2004, her description of her work activities on that day, and her condition thereafter. Drs. Bartl and Norelli were aware of her pre-employment symptoms and treatment. Further, the weights of the samples the applicant worked with were not insignificant, and the job she did on March 5, 2004, required repetitive bending, reaching, and lifting. On this record, the commission declines to conclude that this is a case of a worker simply experiencing symptoms of a pre-existing disease during normal exertive activity. Rather, the commission credits the opinions of Drs. Norelli and Bartl about the causative role of her work activities on that day, and concludes the applicant has proven her work activity on March 5, 2004, was an appreciable period of work place exposure that was a material contributory causative factor in the progression of her condition. (2)
Next, the respondent emphasizes the duration of the exposure -- only a few hours on a single day -- was so brief that an occupational disease claim cannot be sustained. The respondent notes the holdings that
An occupational disease, as that term is used in the act, is a disease like silicosis, which is acquired as a result and incident of working in an industry over an extended period of time. The difference between an occupational disease and an affliction resulting from an accident is illustrated in hernia cases. Where the hernia follows as a result of a definite accident the employee suffers an accidental hernia...; but where it develops as the result of certain types of lifting for a number of years, the employee may have an occupational disease.
Rathjen v. Industrial Commission, 233 Wis. 452, 460-61 (1940), cited by Shelby Mutt. Ins. Co. v. DILHR, 109 Wis. 2d 655, 662 (Ct. App 1982).
Of course, Rathjen also describes an occupational disease as one resulting from work in an employment over an appreciable period of time. Id., at 233 Wis. 2d 460. See also Andrzeczak v. Industrial Commission, 248 Wis. 12, 14 (1945). Moreover, the supreme court has noted:
An occupational disease is a process, usually extending over a considerable span of time. It has a beginning, relevant on the issue of causation. It has a progression but this can vary in individual cases. There can be a steady deterioration, swift or slow but uninterrupted.
Kohler Co. v. DILHR, 43 Wis. 396, 400 (1969). Neal & Danas, Worker's Compensation Handbook § 3.4 (5th ed., 2006) states flatly: "Broadly defined, occupational disease is mental or physical harm that results from occupational exposure but that is not so sudden or traumatic as to fit within the definition of an accident." Thus, the commission has noted:
that injuries caused by short-term repetitive strain may not fit neatly into the analytical categories of accident and occupational disease, but that does not mean they are not compensable as a matter of law. See for example, Charles F. Meyers v. Fort James, WC Claim No. 1998002628 (LIRC, December 8, 1999). On this point, the commission notes that "occupational diseases were brought under the compensation act ... 'so as to include, in addition to accidental injuries, all other injuries including occupational diseases, growing out of and incidental to the employment. [Italics supplied.]'" Employers Mutual v. McCormick, 195 Wis. 410, 413-14 (1928).
Delaney v. Waupaca Foundry, WC Claim No. 2000030373 (LIRC, September 29, 2003).
In short, the Worker's Compensation Act is intended to cover all injuries
growing out of and incidental to employment. The law does not require some
minimum period of employment exposure or work activity as a matter of law before
the exposure may become compensable. Rather, the question is whether the work
exposure was a material contributory causative factor in the onset or
progression of the disability under the "occupational disease" formulation
(3), or the work activity
precipitated, accelerated or aggravated beyond normal progression a pre-existing
degenerative condition in the "Lewellyn 3" formulation. Shelby Mut.,
at 109 Wis. 2d 663. (4)
For the reasons explained above, the commission finds the opinions of Drs. Norelli and Bartl more persuasive than Dr. Aschliman's opinion on this point.
b. Extent of disability
The commission further concludes that the applicant was in a healing period from her work injury for the period claimed, May 17, 2004 (the date of the first surgery performed by Dr. Bartl) to August 11, 2004 (the date when Dr. Bartl initially released the applicant to full duty before the second surgery of February 9, 2005.) As noted above, Dr. Aschliman concurs in the August 11, 2004, end of healing date. See also transcript, page 9.
It appears that the applicant may have entered a period of renewed disability related to the second surgery, done on February 9, 2005. Indeed, the applicant's amended application (exhibits A, last page, letter from David Hudec to the department dated February 7, 2005) claims additional temporary disability beginning on February 9, 2005. However, temporary disability for this later period was not at issue at the hearing, see transcript, pages 8 to 10. Further, the commission cannot tell from exhibit G when Dr. Bartl felt the applicant reached the end of healing from the second surgery that allowed him to estimate permanent partial disability at 20 percent on August 25, 2005. Accordingly, jurisdiction shall be retained with respect to compensation for this later period of temporary disability.
The applicant is also entitled to compensation for permanent partial disability on a functional basis at 20 percent compared to disability to the body as a whole, following the applicant's second surgery. This is the minimum under Wis. Admin. Code § DWD 80.32(11) for cervical discectomy/fusion procedures at two levels, and is the amount estimated by Dr. Bartl.
c. Interlocutory order
After the hearing, there was an exchange of correspondence regarding a claim for additional permanent partial disability based on loss of earning capacity. The ALJ directed the parties to obtain vocational reports, and permitted a deposition examination of the applicant on this issue. Ultimately, the applicant wrote to the ALJ to inform him he would not be filing a claim for loss of earning capacity. The ALJ's subsequent decision granted an interlocutory order which by its terms allowed a possible future loss of earning capacity claim.
On appeal, the respondent asserts the loss of earning capacity claim was either waived or dismissed by the applicant, so the ALJ should not have issued an interlocutory order holding the claim open. However, the discretion to issue an interlocutory order is broad. Interlocutory orders are authorized by Wis. Stat. § 102.18(1)(b) which states in part:
...Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards.
In general, an interlocutory -- as opposed to final -- order to permit future disability and medical expense awards is appropriate when it may not definitely be determined that the injured worker will not sustain additional periods of disability with respect to the injury. Larsen Co. v. Industrial Commission, 9 Wis. 2d 386, 392- 93 (1956), Vernon County v. ILHR Dept., 60 Wis. 2d 736, 739-41 (1973). The level of evidentiary proof to support an exercise of discretion to reserve jurisdiction under Wis. Stat. § 102.18(1)(b) is very low. Lisney v. LIRC, 171 Wis. 2d 499, 515 (1992). When the words 'in its discretion' were added to the sentence from Wis. Stat. § 102.18(1)(b) set out above, the department included an explanatory note to its annotated version of the Worker's Compensation Act stating:
This change is intended to give full scope to the expertise of the department in reserving jurisdiction where the effect of injury may be uncertain or the medical evidence is considered inadequate.
DILHR, Worker's Compensation Act of Wisconsin, with changes to January 1, 1974, note 27. See also DWD, Worker's Compensation Act of Wisconsin, with amendments to December 2004, note 91.
Nonetheless, the respondent contends that "if the applicant believes, in the
future, she has suffered a loss of earning capacity it would not be due to the
alleged injury she claims to have sustained in this case, but rather be an
unrelated factor such as a future injury or progression of her original neck
problems dating back to 1999." Of course, the commission, like the ALJ, is
persuaded that the applicant in fact sustained an injury on March 5, 2004; this
is not simply an alleged injury. Thus, the commission is not inclined to
speculate as to what future medical evidence may show as to the progression of
the condition from the work injury, or its effect on the applicant's earning
capacity. (5)
Finally, the respondent argues that the claim should be barred by the doctrine of issue preclusion. Wisconsin law on the doctrine of issue preclusion was summarized in Teriaca v. Milwaukee Employee's Retirement System, 2003 WI App 145, 265 Wis. 2d 829, 841-42 :
¶12. "Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in the prior action." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995). The general rule on issue preclusion is: "When an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action . . . whether on the same or a different claim." Precision Erecting, Inc. v. M&I Marshall & Ilsley Bank, 224 Wis. 2d 288, 301, 592 N.W.2d 5 (Ct. App. 1998) (quoting Restatement (Second) of Judgments § 27 (1982)).
See also: Ruecker v. Ruecker, 105 Wis. 2d 425, 436 (Ct. App., 1981); ManuTronics v. Effective Management Systems, 163 Wis. 2d 304, 312 (Ct. App. 1991); Michelle T. v. Crozier, 173 Wis. 2d 681, 697 (1993). Here, of course, the ALJ did not actually decide or determine the issue of loss of earning capacity, but expressly reserved jurisdiction on that claim.
In sum, the applicant has had a two-level cervical fusion to treat her work injury. While she may not now have definite work restrictions from her surgeon, even the examiner retained by the respondent, Dr. Aschliman, has indicated restrictions are warranted for her condition. On this record, the commission cannot definitely determine that the applicant has not or will sustain permanent disability on a vocational basis for loss of earning capacity. Like the ALJ, then, the commission's interlocutory order shall include the issue of loss of earning capacity.
d. Medical expense; reimbursement
Because the applicant's work injury caused the disability claimed, the applicant is entitled to medical expenses to cure and relieve the effects of the work injury and disability. The respondent asserts the ALJ erred in requiring the insurer to repay the medical benefits to Wausau Benefits (which are entirely self-insured) and for which no subrogation interest has been asserted. However, these benefits were properly ordered repaid under Wis. Stat. § 102.30(7), which does not require an assertion of a subrogation interest by the non-industrial insurer. The payments are documented in the exhibits submitted by both parties (so the commission infers the applicant consents to their direct reimbursement), and an order for repayment is warranted even when the employer is self-insured for group health benefits. See
Ebben v. Green Bay Packaging Inc., WC Claim No. 2001-012046 (LIRC, April 8, 2005). The commission did, however, eliminate the $125.74 reimbursement to "Gallagher," as Gallagher Bassett Services, Inc., appears to be the worker's compensation insurer's third party administrator.
3. Award
Based upon the foregoing, the applicant is entitled to temporary total disability compensation from May 17, 2004 to August 11, 2004, a period of 12 weeks and one day at the weekly rate of $423.08 (two-thirds of the conceded wage of $634.62), totaling $5,147.47.
The applicant is also entitled to permanent partial disability compensation at 20 percent compared to permanent total disability, or 200 weeks at the weekly rate of $232 (the statutory maximum for injuries in 2004), totaling $46,400. As of July 12, 2006, 100 weeks totaling $23,200 have accrued, and an equal amount remains unaccrued.
The applicant agreed to an attorney fee set under Wis. Stat. § 102.26 at 20 percent of the additional amount awarded under this order. The future value of the fee is thus $10,309.49 {0.20 times ($5,147.47 plus $46,400)}. However, as of July 12, 2006, only the fee attributable to the first 100 weeks of the permanent partial disability compensation has accrued, so the advance payment of the fee attributable to the remaining 100 weeks is subject to an interest credit of $310.48. The present value of the fee is thus $10,008.01; that amount plus costs of $302.16 shall be paid to the applicant's attorney in 30 days.
The amount due the applicant as of July 12, 2006, which shall be paid within 30 days, is $22,375.82. That amount equals the temporary total disability ($5,147.47) plus the permanent partial disability accrued to that date ($23,200), less the accrued attorney fees on those amounts ($5,669.49) and less the costs ($302.16).
The total amount remaining to be paid monthly as it accrues after July 16, 2006, is $18,560, which equals the unaccrued permanent partial disability ($23,200) less the fee thereon ($4,640).
Exhibit 15 indicates that some amount of disability benefits were paid by a non-industrial insurer, Jefferson Pilot Financial Insurance Company, during the applicant's temporary disability, though the commission, like the ALJ, cannot tell how much. Therefore, while the commission shall order payment of the award as calculated above, it shall allow the respondent to make a deduction from that award for amounts paid in reimbursement to Jefferson Pilot Financial Insurance Company for non-industrial disability payments under Wis. Stat. § 102.30(7).
The ALJ awarded medical expense based on the figures in exhibits F and 13. Other than the issue of the reimbursement of payments made by Wausau Benefits and Gallagher discussed above, the parties on appeal do not dispute the amounts that the ALJ awarded for medical expenses. Consequently, the commission adopts the ALJ's figures -- except for the payment to Gallagher -- and restates them in its order.
This order shall be left interlocutory with respect to claims for permanent partial disability for loss of earning capacity, any issue arising from deduction of the commission's award to reflect the non-industrial disability payments made by Jefferson Pilot Financial Insurance Company, the period of temporary disability beginning with second surgery on February 9, 2005, future disability from the work injury, and future medical expense.
NOW, THEERFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within thirty days the employer and the insurer shall pay all of the following:
1. To the applicant, Susan Gumieny, Twenty-two thousand three hundred seventy-five dollars and eighty-two cents ($22,375.82) in disability compensation, subject to an appropriate deduction arising from reimbursement to Jefferson Pilot Financial Insurance Company, if any, for non-industrial disability payments.
2. To the applicant's attorney, David A. Hudec, the sum of Ten thousand eight dollars and one cent ($10,008.01) in fees, subject to an appropriate deduction arising from reimbursement to Jefferson Pilot Financial Insurance Company, if any, for non-industrial disability payments, and Three hundred one dollars and sixteen cents ($301.16) in costs.
3. To Waukesha Health Care, Nine hundred seventy-four dollars and eighty-five cents ($974.85) in medical treatment expense.
4. To Radiology Waukesha, Five hundred twenty-two dollars and thirty-seven cents ($522.37) in medical treatment expense.
5. To Waukesha Memorial Hospital, the sum of Three hundred fifty-two dollars and forty-three cents ($352.43) in medical treatment expense.
6. To Neurological Associates/Dr. Lynn Bartl, One thousand thirty-one dollars and seventy-eight cents ($1,031.78) in medical treatment expense.
7. To Anex, S.C., One thousand seven hundred forty-five dollars ($1,745.00) in medical treatment expense.
8. To Waukesha Physical Therapy Clinics, One thousand four hundred twenty-seven dollars ($1,427.00) in medical treatment expense.
9. To Dr. Christopher King, Six hundred forty-nine dollars and fifty-six cents ($649.56) in medical treatment expense.
10. To Moreland Medical Center X-ray, the sum of Twenty dollars and thirty cents ($20.30) in medical treatment expense.
11. To Wausau, One hundred ten thousand six hundred twenty-five dollars and eighty-five cents ($110,625.85) in reimbursement of medical expenses paid.
12. To Jefferson Pilot Financial Insurance Company, the amount, if any, appropriate for non-industrial disability payments.
13. To the applicant, the sum of One thousand seventy-nine dollars and fifty-five cents ($1,079.55) in medical expenses paid personally, prescription expense, and medical mileage.
Beginning on August 12, 2006, and continuing on the 12th day of each month thereafter, the employer and its insurer shall pay the applicant One thousand five dollars and thirty-three cents ($1,005.33) per month until the additional amount of Eighteen thousand five hundred sixty dollars and no cents ($18,560.00) in permanent partial disability benefits has been paid.
Jurisdiction is reserved for further orders and awards as are warranted and consistent with this decision.
Dated and mailed July 11, 2006
gumiesu . wrr : 101 : 8 ND § 3.4 § 10.9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
cc:
Attorney David Hudec
Attorney Charles B. Palmer
Appealed to Circuit Court. Affirmed, March 2, 2007. Appealed to the Court of Appeals. Affirmed in unpublished per curiam decision, October 15, 2008. Petition for review in Supreme Court denied.
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